A hole in international law?

Is international law really law? One ground for scepticism sometimes suggested is that the system of international law has no mechanisms of enforcement. But this view is too simplistic. If there are sanctions that states can exercise against one another, exacting significant costs of a law-breaking state, then penalties can be applied against such a delinquent state. And there are inter-state sanctions.

In this post, however, I shall discuss what strikes me as an anomaly within international humanitarian law. It was highlighted by something Timothy Garton Ash wrote in yesterday's Guardian concerning the situation in Zimbabwe. Garton Ash's piece makes a refreshing contrast from the column of the previous day by Simon Jenkins; it looks to what can be done, rather than 'so be'-ing the doing of nothing. My interest here, however, is the following specific point. Garton Ash writes:

For good reasons of maintaining international order, the "just cause" bar for [military humanitarian] interventions has to be set very high - roughly speaking, at the level of actual or imminent genocide.

Now, genocide is a crime against humanity, but there are many other crimes against humanity that fall short of it in scale. And, give or take some elaborating sentences, what Garton Ash says is accurate. There is a scale threshold widely accepted as being legally compelling, which requires 'humanitarian crisis' as one precondition of humanitarian intervention by military force. I have, for my part, put this threshold condition in question (see section 2 here, and also these two posts); but that's just me, it isn't the dominant view.

The anomaly within international humanitarian law that I want to draw attention to arises from the above threshold condition taken in conjunction with the now more or less authoritative delineation of crimes against humanity (as embodied for example in the Rome Statute of the International Criminal Court). For, on the one hand, that delineation gives a whole schedule of crimes against humanity that are not, in themselves, the same as genocide (though the list includes genocide). On the other hand, the threshold condition for military intervention most widely accepted as carrying legal force rules out use of military intervention to prevent or halt crimes against humanity, even persistent over time, even on a large scale, so long as the genocide, near-genocide or imminent-genocide condition isn't met.

True, other sanctions can be deployed; and prosecutions may later ensue. But we know from experience that other sanctions don't necessarily halt the flow of crimes, and relative to the incidence and scale of their commission, prosecutions are few and usually late. Consideration seems increasingly to be given, as well, to the granting of immunities in pursuit of a political solution.

We are left, consequently, with this: a system of law that defines a series of crimes, indeed the very gravest crimes, and at the same time shuts off as outside the bounds of law what in principle at least might sometimes be the most effective means of ensuring that the law is respected - compulsion backed by force.

I finish with a question, which is not rhetorical but genuine, addressed to those more familiar with legal systems than I am. Is there any parallel to this within domestic law? Are there laws that define grave criminal offences, but for which the moral force of the law itself and the prospect of subsequent prosecution are seen as the main support, with policing ruled out except in the most dire extremity?